이사의 손해배상책임제한 시 임원배상책임보험이 고려되어야 하는지에 관한 검토

Directorsʼ and officersʼ liability insurance, often referred to as D&O insurance, is a policy that provides coverage for legal liability incurred by directors and officers of an insured company due to negligence in the performance of their duties. This insurance serves the dual purpose of ensuring competent talent within the company and encouraging aggressive management activities by directors and officers. Above all, D&O insurance is meaningful in that it plays a role as a ʻnew safe harborʼ by providing clear ex-ante incentives that enable directors and officers to make confident business decisions. On the other hand, in light of the ideology of the liability system, i.e., fair apportionment of damages, the court operates the legal principle of limitation of liability that limits the ratio of liability for damages to directors and officers. This principle operates as an ex-post liability relief system, subject to the discretion of the court. The central topic of this paper is whether the court should consider the presence of D&O insurance when determining the scope of liability for damages incurred by an officer of a company that has such insurance. In light of the opinion that officers who have committed a breach of duty should be held liable with substantial deterrent power, the court should actively consider whether to subscribe to the insurance policy when determining the limitation of liability ratio. However, this approach might undermine the positive ex-ante incentives offered by D&O insurance, increase uncertainty, lead to dynamic inefficiency from a societal perspective, and present practical challenges. Moreover, D&O insurance and the courtʼs legal principle of limiting liability for damages both serve to alleviate directorsʼ and officersʼ liability in a broad sense. It is not right to nullify the latter with the former.